Jeleel Stewart’s left hand was crushed and permanently damaged in a 2008 workplace accident at a Niagara nursery.
The migrant farm worker returned to Jamaica but continued his treatment there under Ontario Workplace Safety and Insurance Board (WSIB) coverage.
When doctors determined his hand would not heal to allow him to do farm work again, the board ended his benefits, deeming he could use his other hand to work as a gas bar cashier — in the Niagara area.
Commonly known as “deeming,” the practice, introduced in 1990, is used by WSIB to justify the reduction and elimination of compensation to injured workers by identifying alternative jobs available in the area where the person previously worked. The practice is common in all provinces.
While deeming is problematic for most permanently injured workers in Ontario, critics say it is outright unfair to apply it to migrant workers because neither those jobs nor retraining opportunities are available in their home countries.
Injured migrant workers, often sent back home, are unlikely to get a work visa to return to do the lighter jobs filled by Canadians.
With the number of temporary foreign workers in Canada — mostly in Ontario, Alberta and British Colombia — skyrocketing from 96,390 in 2001 to 300,111 in 2011, critics say access to WSIB benefits by injured migrant workers is a growing concern.
“There is a significant population of migrant workers who face this set of rules designed for Canadian citizens,” said professor Janet McLaughlin of Wilfrid Laurier University’s health studies, an expert on migrant worker issues. “It is high time to have those rules re-examined.”
WSIB does not collect statistics based on immigration status, but said migrant workers account for “a very small percentage” of the four million Ontario workers covered.
John Slinger, the board’s chief operating officer, said the agency is aware of the issue. “We recognize the issue and are looking for ways to improve access and services for migrant workers,” he said.
The Industrial Accident Victims’ Group of Ontario, one of the two Ontario legal clinics specializing in workplace injuries, estimates migrant workers account for 1 to 2 per cent of its workload.
However, the clinic says these cases, although underreported, are definitely on the rise as it now sees not only farm workers but also factory workers.
Stewart, 38, who lives in Manchester, Jamaica, with his wife and five children, arrived in Ontario in 2007 and worked for Niagara’s Belmor Farms.
According to a WSIB report, Stewart was loading trees in 20-galloncontainers on a skid on May 12, 2008, when it suddenly fell on his hand.
He returned to Jamaica after two months and got treatment in Kingston until WSIB ended his benefits in 2010. The board confirmed the function of his hand is restricted to a weak grip occasionally for light objects.
“There is no opportunity for someone with only one hand. If I had two hands, things would be tough, but I could always do some farming, cut cane or such,” Stewart told the Star.
“With one hand, I can’t even work the soil on a little garden, do some work as a mechanic. You need two hands to dig or plant, harvest sweet potatoes, even the simplest of work.”
Stewart and his family have since relied on financial support from Canadians he met through a church group for migrant workers. He said he still has pain in his hand, which has spread to his shoulder, back and left leg.
“Is it right for Canadians to expect that farmers and farm workers from developing countries should subsidize our food?” asked Jane Andres, his supporter from Niagara.
“WSIB must change its policy in regard to the practice of deeming. It must recognize the inherent dignity and humanity of each person who is suffering as a result of doing the work that Canadians will not.”
To add insult to injury, Industrial Accident Victims’ Group community legal worker Airissa Gemma said Canadian employers are not obligated by law to offer modified work to foreign workers or to rehire them, as they do forOntario workers.
c
“Workplace compensation is a no-fault system. . . . It is there to protect the most vulnerable,” said Gemma. “Ninety-nine per cent of migrant workers get repatriated (to their own countries) after their injuries. They can’t be re-employed here and are excluded from working for the rest of their lives.”
Ken Forth of the Ontario Fruit and Vegetable Growers’ Association said his 1,500 members pay the equivalent of roughly 2.7 per cent of their payroll to WSIB each year, depending on their history of claims and severity of accidents.
Foreign seasonal agricultural workers have more rights and coverage than Ontario workers, he said, adding if they got hurt shopping after work, falling on stairs or slipping in a shower, they are covered by WSIB.
“Could it be done better? Yes,” said Forth, who runs a 10-hectare broccoli farm outside Hamilton. “But there is no problem to fix. WSIB makes the best decisions it can. It’s complex.”
To improve the system, advocates for migrant workers said, WSIB should require employers to rehire the injured foreign workers to do modified jobs and complete their medical assessment in Canada before repatriation.
Instead of using the Canadian labour market to assess compensation needs, they added, the WSIB should base its decisions on the conditions and job availability in the injured workers’ country of origin.
WSIB’s Slinger said the board launched a specialized team and a telephone hotline two years ago to specifically deal with migrant worker injuries to address any service gap.
Initiatives the board is working on include:
• Extending injured migrant workers’ full benefits from four to 12 weeks.
• Meeting with Ottawa and foreign government consulates to extend injured workers’ visas until active treatment is completed.
• Working with hospitals to speed access to specialized health care to improve full recovery for migrant workers.
• Launching a website this summer on migrant workers’ rights.
As to deeming, Slinger said it is a legislated estimated wage-loss system, “a law and policy” issue in the provincial government’s hands.
Workplace safety for migrant workers
A survey of 576 temporary migrant farm workers in Ontario by researchers Jenna Hennebry, Kerry Preibisch and Janet McLaughlin found:
• 93% did not know how to access claims through WSIB
• 46.3% did not have seatbelts in their work transportation
• 41.1% did not know about specific work risks on the job
• 25% were not trained to do their jobs
• Less than 25% had seen a doctor in relation to health problems
Common health problems cited by the workers:
Exhaustion 65.3%
Back pain 60%
Muscle fatigue 52.3%
Headache 40.5%
Leg cramps 40.4%
Joint pain 35.4%
Burning or itching skin 34.3%
Stomach pain 23.9%
Sore throat 25.6%